Supreme Court must clarify culvert ruling

Originally published August 25, 2017 at 2:50 pm Updated August 25, 2017 at 2:58 pm

Melissa Erkel, with the Washington Deptartment of Fish and Wildlife, looks at a culvert, a large pipe that allows streams to pass beneath roads, along the North Fork of Newaukum Creek near Enumclaw. (Ted S. Warren / The Associated Press, 2015)

Attorney General Bob Ferguson was right to challenge a far-reaching federal ruling that forces Washington state to spend nearly $2 billion replacing culverts. Much more than culverts is at stake.

IN a lawsuit with huge implications for Washington, Attorney General Bob Ferguson rightly asks the U.S. Supreme Court to consider whether the state must spend billions on fish culverts.

The culvert work was upheld by the Ninth U.S. Circuit Court of Appeals. It directs the state to promptly remove and upgrade nearly 1,000 culverts at an estimated cost of $1.8 billion. Supreme Court review must clarify questions raised by the ruling, including the extent of tribal authority on nontribal land.

Of course, culverts, which enable fish to safely travel in streams passing underneath roadways, should be improved for habitat recovery. Washington has been upgrading culverts since the 1990s.

But the state should not waste a fortune replacing culverts on streams that don’t support fish, because they are blocked by other obstructions.

There are other absurd elements in the ruling. The culverts in question were built mostly with federal money, following federal standards. Yet in 2001, the feds, allied with tribes, blamed the state for bad culverts and sued for their removal and replacement.

Really, the feds should fix culverts they had the state install to faulty standards.

More important is the legal precedent that will be set if the ruling stands. It would establish new tribal authority: If tribes can demand culvert removal on nontribal land, they could follow up with lawsuits demanding the removal of dams or cessation of farming and development activities.

“The goal of the tribes from the beginning in this case is to establish the principle that because land-use and development decisions affect the waters of this state, where salmon are present, that they should in a sense be co-managers of the lands and waters of our state,” former Attorney General Rob McKenna, who handled the case for eight years, said in an interview.

Federal and state government mistreated tribes in the past. But judges cannot rewrite that dark chapter in our history or modify the 1855 treaty at issue in the culvert case.

As Ferguson argued in a filing, the Supreme Court “has held that Indian treaties ‘cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.’ ”

Yet the culvert ruling declares a “massive new right and obligation” and “entirely ignored” the treaty agreement in which the tribes ceded authority over nontribal land.

The ruling in effect finds that tribes “silently retained a right to control land use decisions and state policies in the ceded territory that could affect salmon,” Ferguson argued.

The effects would be far-reaching, McKenna explained. “If overnight the tribes became sovereign over lands and waters of the state, the people of the state would notice in a hurry. It would mean the government elected by the people would no longer be sovereign, and since tribes are not accountable to them, that would be pretty shocking to them.”

Tribes are already leaning this way. At their request, Democratic lawmakers during negotiations in the last Legislature tried to give tribes veto power over land-use decisions, on nontribal lands, involving water supplies and streams.

This is a key reason why lawmakers gridlocked over water rights, spurred by a separate case known as Hirst.

Tribes are a major political force. With casinos generating billions of dollars a year, they generously support election campaigns. That influence, combined with modern sensibilities and Washington’s shared interest in fisheries, have made state officials very supportive of tribal efforts to restore salmon habitat.

Yet the Ninth Circuit ruling insinuates that Washington’s opposition to the culvert order is an extension of discriminatory behavior in the previous century, akin to violent clashes in the 1960s over fishing grounds and tribal fishing restrictions in the 1920s.

If true, the court would be justified bringing the hammer down. But it’s false and ignores recent history.

In recent decades, the state spent hundreds of millions on fish-friendly culverts and habitat restoration. Continued investment is needed, but it should be pragmatic and dictated by research, not disruptive lawsuits and politics.

Questioning the culvert ruling is not anti-environment. It’s common sense.

Ferguson is an ambitious Democrat. So his decision to seek review of these important issues, despite blowback from his party and tribes, is brave and commendable.

And people wonder where the road maintenance funds go. Culvert replacements are very expensive, The environmental studies alone are crazy expensive and are quite often more than the actual culvert replacement cost.

Hey, Seattle Times Editorial Board, quotes from the State's cert petition does not an editorial make. How one-sided can you be? In your other article of today on Atlantic salmon you illustrate perfectly that the tribes are working to avert the ecological disaster of the State's day late and a dollar short permitting and oversight of farmed Atlantic salmon in our wild fisheries. Now you tell the tribes to sit back and let the State handle the resources, many of which are OWED to Tribes pursuant to Treaty obligations. A bit hyperbolic, don't you think, to say the tribes want to extend tribal authority on nontribal land? They want the State to meet its Treaty obligations by protecting and not degrading the resources, including the fisheries, in which they have concrete rights. I for one am with them. I agree this case should have been settled, but here we are with increasing stakes for everyone, including Bob Ferguson. He is a master chess player. We'll see how he does with this thorny political issue. But you do your readers a disservice by failing to even touch on an explanation of the tribes' legal position and goals other than resorting to hyerbole.

"...culverts, which enable fish to safely travel in streams passing underneath roadways..." Um, no. Culverts can be designed to be safe for, fish passage, but many were just destined to pass water under roads to prevent roads from also serving as dams. Whether and how to make them compatible with fish migration is the issue. I can see both sides here, but hope the tribes don't overplay their legal hand or overspend their political capital.

Protect The Wolves 4 hours ago

Bob Ferguson has already been shown to be Discriminatory against Our Religious Beliefs... He needs to get replaced! Fergusons office is fine with foreigners coming here and complaining their religious rights are being Violated... they even told stories of how fast things change when its a Foreigner. Yet they refuse to acknowledge our Sacred Beliefs!! Ferguson needs to be charged!

An excellent editorial. The Board nailed this one. The political corruption and outsized influence caused by money in the political system at the state and federal level is ruining our society. Thanks to the previous politicians and administrations and judges who ruined our political processes.

While I perceive Bob Ferguson as a Democrat party "grand-stander", I applaud his public challenge to this atrocious Ninth Circuit "culvert" ruling. Clearly, "enough is enough" even when powerful tribal interests are at stake.

Tribal monies have corrupted nearly every Democrat politician in this state for decades -- members of the Senate, Congress, and the governor's office on down. Wearing their "sovereign nation" hat when it suits them, tribes have argued they have no responsibility to deal with state interests or concerns, only the federal gov't. But pandering politicians in Washington State have seen this differently. A couple of key examples:

In 1989, as a Centennial "gift" to tribes, then gov. Mike Lowery thought it would be a good idea to give a tribal "voice" to every state agency in Washington, and placed an "Indian desk" in every state department. The story goes that he "smelled money" in the recently passed federal Indian Gaming Act (1988) that opened the door to Indian-owned/operated casinos, and that this gesture would be a way to garner some of it.

Yet in 2005, while running for election against Dino Rossi, then gov. Christine Gregoire accepted a $650,000 "campaign contribution" (and "found" some additional votes) from tribes in exchange for NOT negotiating a share of casino profits as provided for in the Indian Gaming Act. This political trade-off has cost the taxpayers of the state of Washington at least $150-million PER YEAR since 2005. Today, there are 28 states with one or more Indian-owned/operated casinos. 27 states have negotiated casino profit sharing compacts with tribes. Washington State remains the one glaring exception! (http://www.seattlepi.com/local/article/Tribes-give-big-to-Gregoire-avoid-sharing-casino-1276446.php)

In Skagit Co., the small (approx. 500+ member) Swinomish tribe, under the direction of Brian Cladoosby (who also happens to be president of the National Congress of American Indians that enjoyed a very cozy relationship with the Obama administration), a rubber-stamp tribal senate and a bevy of hired-gun lawyers has raised havoc with the county and local community. Cladoosby has challenged the water rights of landowners and farmers, the right of the BNSF railroad to operate across a tiny portion of reservation land, claimed the right to control the shoreline and fishing in off-reservation waters, argued that the reservation land area was arbitrarily reduced in size by President Grant in the 1870s, and has publicly stated he wants to see Skagit Co. "returned to pre-European occupation".

And following another notorious Ninth Circuit ruling (Great Wolf Lodge) that is yet unchallenged, the Swinomish now tax "improvements" (homes/businesses) on leased reservation lands (notably 931 parcels in the Shelter Bay community), albeit without any representation or say in how those tax monies shall be used. This action caused a massive tax shift to support local government agencies, principally schools, which remains unresolved.

Suggested reading:

Going to Pieces: The Dismantling of the United States of America (Elaine Willman)

Wampum - How Indian Tribes, the Mafia, and an Inattentive Congress Invented Indian Gaming and Created a $28-Billion Gambling Empire (Donald Mitchell)

Without Reservation - How a Controversial Indian Tribe Rose to Power and Built the World's Largest Casino (Jeff Benedict)

Recent history is that the state has stalled for decades the replacement of these stream blocking culverts. This is just another attempt to justify further stalling. Yes the state should fix the culverts that would maximize habit restoration first, but just because some other thing blocks the stream the state still has a duty to restore it's part so that those other blockers can't point to the state's culvert as to why they shouldn't have to fix their part of the streams. Fishing is a huge industry, and could employ far more people than Boeing, but we need to be careful guardians of the habitat for it to remain so.

1. Stream has a 92 foot more than 45% slope at its mouth, including a 14 foot vertical waterfall. Even a talented flying fish could not get up the steam. Local tribe wants a fish passage culvert to replace the existing culvert at the stop of the 92 foot slope. There never will be a fresh EVER swim under that culvert. Estimated replacement cost more than a quarter million dollars.

2. Another steam also has a waterfall blockage near its mouth. 24 inch culvert less than half mile upstream needed replacement (it was failing). 60 inch replacement proposed. DFW said no ... 9 foot, 6 inch needed to meet new state hydraulic rule. Local tribe objects, wants a 16+ foot stream simulation culvert (10o year flood shouldn't touch sides of culvert). Tribe gets their wishes ... pays zero. No salmon in this stream ... another problem. The little resident cutthroat (about 4 inches ... no sea going fish) are salmonoids ... although they are not salmon. Close enough says the tribe ... an nobody will challenge them.

Blocking culverts that are known salmon streams ... no problem ... replace the culverts. But the many culverts on non-salmon streams need some common sense applied before wasting large sums of public money.

The judicial decision is seriously flawed and I couldn't be more pleased it is being challenged because there are a lot of hugely important implications.

1.Indian sovereign nations.None of the asserted tribes possess any of the attributes ofbeing a ‘sovereign nation:’ a.No U.S. Constitution recognition b. No international recognition c. No fixed borders d. No military e. No currency f. No postal system g.No passports h. et al

2.Treaties with its own constituency

3.Indian reservations whereby a select group of U.S./State citizens with “Indian ancestry/race” reside exclusively and to the exclusion of all others, on land-with rare exception-that is owned by the People of the United States according to federal documents readily available on-line that notes rights of renters as ‘occupancy and use’ by these distinguished U.S./State citizens with “Indian ancestry/race” only with the land owned by the People of the United States.

4.Recognition of ‘Indian citizenship’ asserted by various tribes.There is no international/U.S. Constitution recognition of “Indian citizenship” as there is no ‘nation-state’ from which citizenship is derived.

A simple question for politicians and MSM to answer…a question so simple, it is hard:
“Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

"At their request, Democratic lawmakers during negotiations in the last Legislature tried to give tribes veto power over land-use decisions, on nontribal lands, involving water supplies and streams."

I am very much in favor of tribal rights reserved by treaty, and also very much in favor of stream revitalization and protection, habitat preservation and improvement, maintenance of fish stocks, and survival of endangered species. But I find the notion that tribal regulatory authority extends to stream protection and habitat preservation off tribal land to be a laughable stretch legally. SCOTUS will slap this ruling down. And perhaps it was only a negotiating ploy in the face of Republican intransigence over Hirst, but the Democratic push to accord tribes local government authority off-reservation is equally absurd. Get real. That should only be done via negotiated interlocal agreement, not by state preemption.

Sometimes I think Democrats are their own worst enemy in their beholdenness to special interests just as much as Republicans. The rest of the time I know they are...

A pox on both parties. Locally and nationally, both parties are abdicating America. They are both responsible for the shameful state of our current politics. That a dangerously psychotic and tacky buffoon occupies the Oval Office today is the responsibility of both parties - and all of us.

I commend the Seattle Times editorial board for exposing the real game plan of activist tribes. I ask this question: If tribes are entitled to 1/2 of the salmon who is entitled to the other 1/2? Apparently the other 1/2 has no rights at all. I hardly think Territorial Governor Stevens designed a treaty that would allow the tribes to control the water of the states. The argument is beyond comprehension if believing the other half somehow has no rights at all. It's like the other half lost the war and the defeated party obtained all the rights.

Some might argue that water was not an issue in 1855. Well that is a not true in the slightest. Water has always been an issue throughout the ages. An old saying was: "Whiskey is for drinking, water is for fighting." Essentially all cultures evolved along water ways or lakes. Water is always important and it is ludicrous to believe that Governor Stevens was so stupid he did not understand the value of water.

The Boldt decision was okay. 1/2 the fish to the tribes but he did not say 1/2 the water to the tribes. Courts try to be cute and extend ideas beyond the point of being practical or reasonable. Right now we have a bunch of progressive liberal court members, both in the state and in the 9th circuit who really need a history lesson on logic. The victor does not give away the prize. Clearly Governor Stevens was a brilliant engineer and politician who understood the value of water.

As quoted in HistoryLink.com: "In addition to his duties as governor, Stevens sought and received command of a party surveying a railroad route from the Mississippi River to Puget Sound." Whether or not the treaty was fair can be debated but to construe the right to fish is the same as the right to control water is beyond any logic, treaty or rule of law.

Not a "living document" liberal...are you. The only reason Tribes exist as a sovereign nation within the contiguous borders of the United States is because the United States allows it to continue. They are not sovereign nations, they are not self sustaining, they are a political fiction based on race or at least a blood quantum component of race. Are you a proponent of a "First Nations" status similar to Canada?